Probate Procedures

Especially for those who have never gone through Virginia probate procedures, many people are left wondering "What now?" after the death of a loved one.  Probate is the process by which a the assets of a deceased person (a "decedent") are marshalled and transferred to the decedent's heirs or the beneficiaries under his or her Will, and there are inevitably many twists and turns throughout the process.  There are various stages of probate in Virginia, and if you have legal advice during these stages, you may be able to avoid a great deal of hassle that the unwary may undertake unnecessarily, or you may avoid a mountain of paperwork that many find insurmountable.

Often, the first stage of Virginia probate procedures is the location of the decedent's Will (if any), and the "qualification" of an Executor or Administrator of the decedent's estate.  "Qualification" involves presenting the Will, if any, to the Clerk of the Circuit Court and completing a large amount of paperwork, which then opens the paperwork floodgates.  When someone qualifies as Executor or Administrator, he or she has the fiduciary obligation to marshall, manage, and distribute the assets of the estate in accordance with the Will or Virginia law on intestacy (if the deceased person did not have a Will).   In  some  circumstances,  the  assets  of  the

curvy road

decedent are structured in a way that the surviving heirs of that person need not qualify in order to access the assets.  If the assets of the estate can be properly administered without the need for any person to qualify as Executor or Administrator, then probate can often be avoided entirely.  This can save time and money, and reduces a burden placed upon the shoulders of the grieving. 

However, probate is not always, or even often, avoidable entirely, and most people who have to go through probate find that they need help in order to do so.  The Executor or Administrator of an estate is typically obligated to file documentation periodically with the Commissioner of Accounts, and this documentation is often very detailed and complicated.  If the Executor or Administrator fails to do what he or she is obligated to do, then he or she may be personally responsible for fees, improper distributions, etc.  Therefore, the most prudent Executor or Administrator will contact an attorney early in the process in order to be sure that he or she is not exposed to personal liability.  Because probate is such a complicated process, the Executor or Administrator may typically use estate assets to pay the attorney's fees because those fees are proper estate administrative expenses.

If you have found yourself holding the reigns of an estate, and are not sure where to turn for help in navigating the probate minefield, please contact us so that we can help you take the next steps safely.

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